The winter edition of the Florida Bar’s International Law Quarterly (ILQ) is out. The ILQ is quickly becoming required reading for any international lawyer. While the last issue focused on China, the focus of the latest edition is international litigation and arbitration.

As Editor-in-Chief Alvin F. Lindsay points out, the geographical diversity of the authors selected for this edition is truly remarkable. There is something for everybody, from A View from Abroad: Corporate Responsibility for International Crimes? to Lost in Translation: American Juror Perceptions of Foreign Litigants. Other articles include:

The Enforcement of Foreign Arbitral Awards in Brazil and the Ratification of the New York Convention

Production of Electronic Documents and Information: New UK Practice Direction Targets Costs of Electronic Disclosure

The Better Approach to Deciding 28 U.S.C. §1782 Applications for U.S. Discovery in Private Arbitrations Abroad

On Tuesday evening, the AIIA and Young Lawyers International Law Committee held their first joint event on the future of immigration and refugee law and policy in Australia. The event was a resounding success and was attended by more than 80 members of our respective organisations.

The discussion panel consisted of Sydney University professor, Mary Crock, whose specific research interests range from studies of the interaction between Parliament and the judiciary, to the legal rights of migrants and refugees. Her research and analysis of the various policies and laws enacted by the Australian Government exposed serious flaws in our approach to refugees and Mary’s passion added a dimension to the discussion that humanised the whole experience.

Mary was be followed by Kerry Murphy, a partner of D’Ambra Murphy Lawyers working on all aspects of migration law including administrative and judicial review. Kerry’s work has taken him to the many Detention Centres scattered throughout Australia and off-shore. Listening to some of his experiences and hearing about the hardship suffered in these camps was vital to appreciating the austerity of some of the immigration legislation passed in the last ten years.

Pouyan Afshar, the immediate past president of NSW Young Lawyers and an Associate at Baker & McKenzie, closed off the discussion with his account of the cultural and social elements that rarely gain a mention in these kinds of discussions. Drawing from his own experiences as a migration agent and working with refugees as an interpreter, Pouyan’s account of the economic, political and cultural dimensions of the debate regarding “illegal immigration” had a grounding affect that was the final ingredient required in such a discussion.

Immigration and refugee law in Australia has been thrown around the political landscape to emulate the same emotional reactions synonymous with crime and social welfare. This is not a political issue. As Mary states: “The number of refugees who come to Australia as asylum seekers – by plane or boat – is minute in world terms. The numbers are manageable. Most come because of prior connections with communities in Australia.” Australia has a legal, moral and ethical requirement to approach this issue as more than just a political one.

Discussions such as these are vital to understanding the real issues that face Australia regarding immigration and refugees and I’d like to thank our panellists for their insightful and grounded contribution to this debate.

If you would like to read more about this topic, please find below a selection of articles that deserve a read:

“International law has taken three body blows in the last decade: Serbia, Iraq and now Libya, where foreign interference is patently obvious, where the entire anti-Gathafi campaign is orchestrated from abroad, manipulated by the media and controlled by elements who have been trying to assassinate the Libyan leader for decades.”

“not all Libyans are against Colonel Gathafi, which is patently obvious in Tripoli and probably in other areas, where they dare not show their heads among marauding crowds of thugs, terrorists and vandals who have taken the streets, the darlings of an anti-Gadhafi international media which appears to support acts of terrorism and public disorder”

He makes the point that “what is at stake here is respect for international law, which upholds the right of all countries to apply their Constitution in their own territory.” While his editorial is blatantly anti-American, it provides an interesting perspective on the current crisis in Libya and identifies key weaknesses in the application of international law during war.

This insight comes as the International Criminal Court Prosecutor, Luis Moreno-Ocampo, in accordance with the requirements under the Rome Statute announced the opening of an investigation in Libya after just four days of analysis. The speed is unprecedented, as the prosecutor normally spends many months before reaching a decision to actually commence an investigation. Both the Security Council resolution and the swift response by the prosecutor is an indicator of the growing importance of the ICC in international affairs.

The ICC is different from the International Court of Justice (ICJ), which, with its predecessor court, has operated for nearly a century. While the ICJ handles legal questions involving states (such as the West Bank security barrier), the ICC is a criminal court that tries individuals. This is one of the material differences of the ICC and the ad hoc international tribunals created largely in the past two decades: they can take custody of individuals, try them, and put them in prison. The idea is that holding individuals accountable (and not just states) is the most effective way to deter serious violations of humanitarian law and human rights.

Interestingly, the United States not only supported the referring the Libyan situation to the ICC but even helped circulate a draft resolution with the idea, although it is not a party to the Rome Statute and it abstained in the referral of the Darfur violence.

As in the case of Darfur, the investigation regarding Libya might lead to arrest warrants targeting not only Col. Qaddafi and his family but also officers, soldiers, paramilitaries, or mercenaries engaged in criminal acts. If the court succeeds in taking suspects into custody, the process could then continue toward trials or sentencing.

Even if the process does not go that far, ICC involvement could still affect events significantly. ICC action is now a card in the hands of opponents of the Qaddafi regime. In any negotiations with Qaddafi, his opponents could use the stick of ICC prosecution (and the carrot of the Security Council’s suspending ICC action for renewable twelve month periods) as an incentive for Qaddafi to stand down. If Qaddafi decides to leave Libya with ICC action ongoing, then he might need to opt for countries like Nicaragua or Cuba that are not party to the Rome Statute, rather than a Rome Statute state like Venezuela. If violence continues, the threat of ICC prosecution also could motivate those working or fighting for Qaddafi to refuse orders.

Is international law enforceable under wartime conditions?

What role does the media play in building potential cases to be heard in the ICC?